Saturday, September 20, 2003

I'm almost speechless that Judge Pregerson isn't

The second round of arguments in the case [regarding the California gubernatorial recall election] will be heard Monday in San Francisco by a panel of 11 appeals court judges that is far more conservative than the group of three who ordered the election postponed. The makeup of the new panel caused one of the original three judges to predict their decision would be overturned.

"You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it," Judge Harry Pregerson said in an interview.

And near the bottom of the same article:

"Judge Paez, Judge Thomas and I — we did the right thing," Pregerson said. "We're there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine."

Juxtapose those quotes with this one:

A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control. This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.

Canon 3A(6), Code of Conduct for United States Judges (emphasis added).

Note 3 at the very bottom of this document confirms that this "Code governs the conduct of United States Circuit Judges, District Judges, Court of International Trade Judges, Court of Federal Claims Judges, Bankruptcy Judges, and Magistrate Judges." (Emphasis added.) And the official Commentary to Canon 3A(6) states:

The admonition against public comment about the merits of a pending or impending action continues until completion of the appellate process. If the public comment involves a case from the judge's own court, particular care should be taken that the comment does not denigrate public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A. This provision does not restrict comments about proceedings in which the judge is a litigant in a personal capacity, but in mandamus proceedings when the judge is a litigant in an official capacity, the judge should not comment beyond the record.

(Emphasis added.) United States Circuit Judge Harry Pregerson of the US Court of Appeals for the Ninth Circuit sits in Los Angeles, California; is a member of the California bar; and served as a judge in the California state-court system before he was appointed to the federal district court bench by President Johnson in 1967. A parallel proscription governs judges in the California state-court system:

A judge shall not make any public comment about a pending or impending proceeding in any court, and shall not make any nonpublic comment that might substantially interfere with a fair trial or hearing.... This Canon does not prohibit judges from making statements in the course of their official duties or from explaining for public information the procedures of the court, and does not apply to proceedings in which the judge is a litigant in a personal capacity. Other than cases in which the judge has personally participated, this Canon does not prohibit judges from discussing in legal education programs and materials, cases and issues pending in appellate courts. This educational exemption does not apply to cases over which the judge has presided or to comments or discussions that might interfere with a fair hearing of the case.

Making comments like these about the likely disposition of an en banc rehearing and the composition of the en banc panel to the LA Times is not remotely part of Judge Pregerson's "official duties." Nor is a comment about the likely disposition of an appeal he just finished ruling upon "explaining for public information the procedures of the court." Even if he's a voter, Judge Pregerson is not a "litigant in [his] personal capacity."

In short, this is a clear ethical violation — a stunning and simply indefensible one. It is not a close call. It would not be excused even if Judge Pregerson thought he was speaking anonymously or off the record.

It is just very badly wrong.

No matter how much I personally agree or disagree with the panel opinion in the Shelley case (and I do strongly disagree with both its merits and the style in which it was written), my respect for the office Judge Pregerson holds and the bench upon which he sits simply makes me heartsick to read this.

I write and publish this conclusion with keen awareness of, but notwithstanding, my own general ethical obligation as a lawyer (albeit neither a member of the California bar nor that of the Ninth Circuit) to avoid bringing the judiciary into disrepute. Judge Pregerson's performing (and I use that word advisedly, in two different senses) in an extra-judicial capacity. Nothing I or any other lawyer could say on the subject would be more than a gnat on a whale's back given what Judge Pregerson has just done.

(A sad hat-tip to Howard Bashman, who first noted this problem and has several related links about Judge Pregerson.)

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UPDATE (Sat Sep 20 @ 6pm): Professor Eugene Volokh of The Volokh Conspiracy has also reported this story, generously including a link to BeldarBlog. He concludes as I do that with respect to Canon 3A(6) of the Code of Conduct for United States Judges, judges "should follow the rules, and the rule here seems pretty dispositive." While he finds it "hard to see the Pregerson statement as anything other than a Code of Conduct violation," he very charitably wonders "how important this provision (in its current breadth) is to the sound administration of justice" and suggests that Judge Pregerson's particular statement

does not seem to be particularly harmful on its own: It doesn't tell the public anything about Pregerson's likely future decisions about the case beyond what the original opinion itself said, and while it suggests that the makeup of the en banc court may affect the outcome of the case, that's hardly a secret.

But it seems to me that the likely harm — erosion of public trust and confidence in the courts, especially his own court — goes to the very core value that the rule is designed to protect. Lawyers, reporters, and hotdog vendors can all speculate about the mini-en banc panel's composition and leanings. But here's a judicial insider predicting, in essence, that his brothers on the bench will deliberately refuse to apply the US Constitution properly. Everything he could possibly say is presumptively tainted by his exhaustive inside information about the case and the court. His job duties can include neither cheerleader for, nor critic of, his own court and its judges with respect to a pending case — any pending case, much less one of overriding importance and public scrutiny like this one.

Finally, one can only ignore the potential harm if one analogizes to the traditional defamation defense: The defendant couldn't have been damaged because everyone already knew he was a damned horse-thief and a Communist anyway! (Or an alien kitten eater ... whatever.) I hate to think that as jaded and partisan and cynical as parts of the public are, the entire public is that way when it comes to our federal courts as an institution. If they are, it's from the relentless assault on the court system's integrity that washes in and out through the popular press like waves on the beach. And if so, friends and neighbors, this was no mere ripple or chest-high swell, but a tsunami. [Prof. Volokh updates here re Mickey Kaus' defense of Judge Pregerson.]

It is a shocking breach, but because Judge Pregerson is old, a veteran of unquestioned courage, and a liberal's liberal, it will go unsanctioned. I refer readers who missed it to my WeeklyStandard.com column on Judge Pregerson from Thursday: Judge Pregerson, like others on the Ninth Circuit, is not bound by the ordinary rules that apply to mere mortal citizens.

Mr. Hewitt is probably right, certainly at least with respect to public reprimand, and of course Judge Pregerson like all Article III judges has life tenure, subject only to the possibility of impeachment, which is certainly not going to happen. One might hope that Ninth Circuit Chief Judge Mary M. Schroeder would take some private action. And yet ...

By definition, the offense here was an exceedingly public one. Private action, whether in the nature of counseling or wheedling or reprimand, does nothing to restore public trust in the ethics of the Ninth Circuit. Indeed, uncertainty on the subject feeds the problem. When you have such a clear and public violation, you ought to have a clear and public response. Legal ethics, especially judicial ethics, ought to be scrupulously protected and enforced; episodes like this one just make them into mockeries.

What Judge Pregerson has done is an assault on my profession. How can any ethical lawyer not take it somewhat personally?

This whole episode leaves the bitter taste of ashes in my mouth.

During what remains of this weekend, I shall re-read the D.C. Circuit's 2001 decision in US v. Microsoft Corp., in which it concluded that US District Judge Thomas Penfield Jackson had violated Canon 3(A)(6) in conversations with the press regarding the remedy phase of the government's antitrust trial against Microsoft. Microsoft succeeded in getting Judge Jackson disqualified from further proceedings, and the case went to a different district judge on remand. (There's a theoretical chance, I suppose, that the issue of Judge Pregerson's disqualification might arise if the entire Ninth Circuit were to agree to re-rehear the mini-en banc eleven-judge panel's decision, but from what I've read, that's never happened and isn't likely to happen now.) I also intend to read carefully, and think upon, 28 U.S.C. § 372(c).

UPDATE (Sun Sep 21 @ midnight): I've discovered that 28 U.S.C. § 372(c) has been replaced by 28 U.S.C. §§ 351-364 as part of the Judicial Improvements Act of 2002. However, I shall have no further public comment to make on this matter. (Note: I've edited this post since its original publication to change the reference to "Canon 3A(6)" instead of "Canon 3(A)(6)" in order to conform to the Commentary's format; and I've also switched the order of the discussion of the federal and state versions to lead with the former, since the latter probably hasn't applied directly to Judge Pregerson since he left the state-court bench.)

Today's Wall Street Journal had an editorial titled The Ninth Circus", which said in part: "Over the weekend Judge Pregerson ignored the most basic tenet of judicial ethics by which judges decline to discuss a case in progress . . . [by] [d]eriding the 11-judge en banc panel that will hear argument in the recall decision today[.]"

The editorial further pointed out that "Last term the Supreme Court reversed 75% of the Ninth Circuit cases it took, a record that has held steady for about a decade."

Just replace "-at-" with the "at sign," that lower-case letter A in a circle that you get from typing SHIFT+2. Due to aggressive spam filtering, however, I'm likely to miss your email unless the subject line of your email starts with "BeldarBlog."

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